Railfan Technology > Photo publication advice

I posted this on the Western board, then realized that a number of fellow photos hang out here, so I'll ask the same thing of you all.

I've been told by people I respect that I have a large number of train pix (as well as race cars and other stuff) that would sell, mostly to the general public (mostly steam, and a bit on the arty side as opposed to "roster shots"). I have a couple of venues lined up already and plan on selling 8x12 matted prints in the neighborhood of $20-$30, signed and numbered. Framed prints will come later when I earn enough (I hope) to buy frames! I don't want to kick off the UP license debate but I do want to know a) if I have to obtain the OK from UP. How about BNSF? Most of my pix are ATSF 3751, SP 2472, SP 4449, and UP 3985. Do the owners of those specific locos need to give permission? Everything was taken in public places and I'm not including pix w/recognizable people in them because there is no way I can get releases at this point. I want to do this the right way, as I know publishers and galleries (I've been told there should be interest in my stuff, who knows) get a bit gun shy if there is even a hint of a lawsuit. Thanks for the advice.

BYW, thanks for the dvice on the thread about which photo scanner to get. I got the Epsom 4490 (the 4990 is out of my price range) and LOVE IT!

You don't need permission from anyone to sell the prints you describe.

Alco251 Wrote:
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> You don't need permission from anyone to sell the
> prints you describe.


Agreed.

First, let me say that I am not a lawyer, nor have I ever played one on television. Your mileage may vary.

Given the market you've described above, then technically (key word being "technically") you would need permission from any corporation whose name or copyrighted logos appear in the images. (This applies to work being sold for advertising or commercial consumption like fine art prints, not for editorial use in magazines or newspapers). Once again, technically you might need permission from any corporation or individual whose products or property appear in the image, from locomotive manufacturers to home owners. The 1522 group, for instance, has copyrighted the 1522 coonskin number plate, so technically any photo that showed the number plate would need permission from the 1522 group to be sold commercially.

Now here's the reality -- it's highly doubtful that anyone on the railroad side would try to enforce their rights on something like this (including UP, who has backed off quite a bit). But if you were to try to sell images of sports teams, NASCAR or scenes from Disneyland, you'd have their lawyers on you in seconds. The truth is, the railroads and manufacturers have been very kind over the years in letting industries (from model railroading to t-shirt sales) use copyrighted material with no compensation back to the railroads. The entire model railroad industry is built on copyright infringements, from paint schemes to locomotive and freight car likenesses. Like I said, try selling NASCAR photos online and let me know how long you're in business.

There is quite a difference between what the railroads' rights are on this issue and what the railroads enforce.

Steve Barry
Railfan & Railroad

While I respect that Mr Barry is likely to be morea acquaited with the legal system with regard to copyrights I fail to understand how someone like the UP, SLSF 1522 and NASCAR can reasonably expect that photos taken of their logos in the public view somehow remain under their full control. Nascar may claim a ticket holder admitted to one of their events on a closed cours may have agreed to any photo restrictions printed on the ticket by cashing in the ticket for admission. However, if one of the teams drags a car in full logos down the interstate on an open trailer they should expect that car will be photographed. The same for the UP and the 1522 crew. Now if I want to sell or rent those photos for editorial purposes how can they claim the want to keep the logo out of the press? If I want to publish a calendar of "TRAIN" photos which happen to be 12 UP images rather than a calendar of "Union Pacific Train" photos they may have a technical beef account I am trying to use their name to sell my product. Yet, how can they expect no photos of their trains will be taken during the time the train is in plain view of nearly the entire world? Why do they think they should be able to control the use of the images copyright by the photographer?

Now something kept under wraps in a secret building which is clearly posted as being a photo restricted zone is one thing. Someone using the logos copyright by the company for a use not consistent with the purpose of the company such as cups, model railroad materials, a competing railroad or whatever should have no expectation of free use of the logo. Yet the trains image in the public venue is more than the logo. You can say the architects design of a building is copyright and perhaps if you copy the design of the building for yourself you will probably lose in court. If you take a photo of the same building for a post card or saleable print you may have a very hard time convincing anyone your image from a public thoroughfare is somehow completely yours to market even though some have certainly tried.

So I would think a jury of common people would likely rule in the favor of the person on the street who takes a nice photo and is able to sell the image to others. It is funny how laws do get changed late at night in the dark corners of a 450 page piece of legislation to give the control to the larger entity, though. It would be a sad day though when that happens and a harsh time to be in the railfan magazine publishing business.

stivmac Wrote:
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> I want to do this the right way,

Stop right there. That's the answer to the whole thing. Get permission.

You are setting out on a commercial business endeavor. Most judges will reason that if you are taking money for it, you are presumed to be professional (regardless of actual experience, expertise or quality). As such, you can't simply revert to being just "a hobby" when the waters gets too warm. Get permission, get a release. Yes, it may be a pain, and it may result in some refusals. But it is the practical thing to do.

karlj Wrote:
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> stivmac Wrote:
> --------------------------------------------------
> -----
> > I want to do this the right way,
>
> Stop right there. That's the answer to the whole
> thing. Get permission.
>
> You are setting out on a commercial business
> endeavor. Most judges will reason that if you are
> taking money for it, you are presumed to be
> professional (regardless of actual experience,
> expertise or quality). As such, you can't simply
> revert to being just "a hobby" when the waters
> gets too warm. Get permission, get a release. Yes,
> it may be a pain, and it may result in some
> refusals. But it is the practical thing to do.

Good lord- for what you are doing, fortunately we live in a free country. Anything you shoot from public property, can be photographed and sold. PERIOD. Sure, Nascar, major league sports, all of these venues have to be photographed on their property, and thus their rules. Anything shot out in the open is however fair game. If a Coke truck drives down my street, and I sell a picture of it, I don't owe squat to Coke. Can I sell a competing product using their trademark, no.

Cinderpath Wrote:
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> karlj Wrote:
> --------------------------------------------------
> -----
> > stivmac Wrote:
> >
> --------------------------------------------------
>
> > -----
> > > I want to do this the right way,
> >
> > Stop right there. That's the answer to the
> whole
> > thing. Get permission.
> >
> > You are setting out on a commercial business
> > endeavor. Most judges will reason that if you
> are
> > taking money for it, you are presumed to be
> > professional (regardless of actual experience,
> > expertise or quality). As such, you can't
> simply
> > revert to being just "a hobby" when the waters
> > gets too warm. Get permission, get a release.
> Yes,
> > it may be a pain, and it may result in some
> > refusals. But it is the practical thing to do.
>
> Good lord- for what you are doing, fortunately we
> live in a free country. Anything you shoot from
> public property, can be photographed and sold.
> PERIOD. Sure, Nascar, major league sports, all of
> these venues have to be photographed on their
> property, and thus their rules. Anything shot out
> in the open is however fair game. If a Coke truck
> drives down my street, and I sell a picture of it,
> I don't owe squat to Coke. Can I sell a competing
> product using their trademark, no.


Here is some further explination-
"Know Your Rights and Limitations When You Photograph Property

In general, if property is visible and can be photographed from a public place, you don't need a property release to use the image in any manner. This exclusion to copyright law includes buildings located on the property, but not statues or other items that may have separate copyrights. There also are restrictions on some governmental property for security purposes, such as federal seals and insignia, and military or nuclear installations. But if the statue or copyrighted item has minimal presence in your image, your photo still may fall under the exclusion. Otherwise, you must get permission to use the image for commercial purposes.

Nevertheless, some companies have tried to prevent the use - both commercially and editorially - of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the lone Cypress tree at Pebble Beach, CA, and the "Hollywood" sign. While these attempts have been unsuccessful, they can be expensive to litigate. Is it worth it to you to spend thousands of dollars to test this issue? That's a choice you'll have to make.

From The Photo Attorney_

http://www.photoattorney.com/2005_04_01_photoattorney_archive.html

My feeling is that if you are selling prints for a modest amount the most that will happen is that you will be given a letter telling you to stop doing it. That would mostly depend on how you would advertise you product. If you start running ads with the UP logo in magazines you could run into problems. If you are at a local train show or club meeting and hawking some prints, I think you are pretty safe.

Bob

Everyone is a photographer but who makes money at it? Selling a print to a neighbor or a relative does not constitute an ansel adams career. Sell what you can and I doubt anyone is going to bother you. Good luck!

John C. Benson

http://www.bensonrailphotos.com